1802244 (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination Scheme visa by the applicant, who sought to work as a Restaurant Manager for [Employer 1]. The central issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4007, which requires applicants to be free from certain diseases or conditions that could impose a significant cost on the Australian community, or whether a waiver of this requirement should be granted.

The Tribunal was required to determine if the applicant satisfied PIC 4007, specifically concerning the potential cost to the Australian community arising from his asymptomatic HIV infection. This involved assessing the opinions of Medical Officers of the Commonwealth (MOCs) regarding the likely costs of treatment and considering whether the applicant's circumstances warranted a waiver of the health requirement. The Tribunal also had to consider the applicant's submissions regarding the potential impact of returning to China on his treatment and the risk of stigma and discrimination.

The Tribunal's reasoning focused on the evolving MOC opinions and the applicant's personal circumstances. An initial MOC opinion in March 2017 assessed the likely cost of treatment at $621,000. A subsequent opinion in October 2017 maintained this cost assessment, leading to the refusal of the visa by the delegate. However, a fresh MOC opinion obtained in March 2020, following an invitation from the Tribunal, reduced the estimated cost of treatment to $135,000. While this amount still exceeded the policy threshold for significant cost, the Tribunal weighed this against several factors. These included the applicant's good health, positive response to treatment, expected normal working life, significant financial resources, capacity to increase earnings, and health insurance. Furthermore, the Tribunal considered the applicant's essential role in the Australian business, the strong support from his employer, and the potential disruption to his medical treatment and risk of stigma and discrimination if he were to return to China. The Tribunal concluded that these factors, taken together, demonstrated compelling and compassionate reasons for granting a waiver, and that the granting of the visa would be unlikely to result in an undue cost to the Australian community.

The Tribunal remitted the matter for reconsideration, finding that the applicant had established compelling and compassionate reasons for the waiver of the health requirement to be exercised.